Vodacom prevails in ‘please call’ case

Johannesburg - The battle for the soul of Vodacom’s “Please call me” service ended in an anticlimax in the South Gauteng High Court yesterday when the matter was dismissed with costs by Judge Phillip Coppin.

However, he was scathing about evidence supplied by former chief executive Alan Knott-Craig, who was found to have manipulated the truth about who invented the service.

Knott-Craig claimed in his autobiography, Second is Nothing, that he came up with the idea while chatting to a colleague in a Vodacom building.

The legal team representing former employee Nkosana Makate, who sued the company for more than R6 billion, said the war was not over and they wereprepared to exhaust every available resource for the plaintiff to gain compensation for inventing the service.

Assessing the case, Judge Coppin said he had difficulties with key aspects of Knott-Craig’s evidence. “The areas that perturb, in particular, were concerning his knowledge, or lack of knowledge, of the idea behind the “Please call me” product, despite his position as chief executive and his reputation as someone who was hands-on.”

Makate started the precedent-setting case after he sought to be paid for coming up with the idea while working for Vodacom in November 2000. He claimed to have entered into an oral agreement with Philip Geissler, the then executive of product development at Vodacom.

Geissler allegedly promised to facilitate remuneration negotiations between Makate and the company after he submitted the idea, once it was developed and its technical and commercial feasibility were ascertained. This agreement was made despite the fact that Vodacom did not compensate employees for their ideas above normal remuneration.

During the more than year-long case, Vodacom’s legal team argued that the issue was never about intellectual property. Instead, it hinged on whether Geissler was authorised to enter into a contract on behalf of the company.

Likonelo Magagula, a director and intellectual property rights lawyer at Norton Rose Fulbright, said given that Makate was a full-time employee when he came up with the concept, in terms of the Copyright Act, ownership of copyright in a work product which an employee created during the course and scope of employment vested with the employer. “There is no intellectual property protection afforded in ideas per se – that is, there is no proprietorship or ownership in an idea if the idea is not reduced to material form.”

She added that the case would have been decided in favour of Makate if he was engaged as an independent contractor.

However, even in that case, the issue would still be whether Makate thought of the idea or whether he came up with the ultimate product or at least wrote down how the product worked, as required by the Copyright Act, she explained.

Christiaan Schoeman, a consultant at Sterling Rand, which provided more than R2.5 million in legal costs for Makate, said his team respected the judgment but disagreed with it. “We will pay until the last available resources have been exhausted because the evidence provided by the plaintiff has been found to be true and accurate.” - Business Report